Uighurs’ plea denied

Posted Mon, April 18th, 2011 9:25 am by Lyle Denniston

Apparently confident that five Chinese Muslim (“Uighur”) detainees at Guantanamo Bay have a chance at freedom if they will accept the government’s offer of resettlement, the Supreme Court on Monday refused to review a decision that bars those five from being released unless the government concurs, even though the Pentagon no longer has a reason to continue their confinement. Four Justices, who together could have put the case before the Court with their votes (four is the minimum needed), opted to write a separate statement about why they did not do so. The denial leaves the Court with one case from Guantanamo still on its docket this Term: the case of Khadr, et al., v. Obama, et al. (10-751), on which the Justices took no action Monday. (UPDATE 12:25 p.m.: The Khadr case will be considered again at this Friday’s Conference, according to the Court’s electronic docket.)

Justice Stephen G. Breyer, joined by three other Justices — Ruth Bader Ginsburg, Anthony M. Kennedy and Sonia Sotomayor — wrote separately (but did, in fact, join in the denial) to say that they saw “no Government-imposed obstacle to [the Uighurs’] timely release and appropriate resettlement.” The statement argued, in spite of claims to the contrary by the Uighurs’ lawyers, that there was no “meaningful challenge” to the appropriateness of the government’s arrangement for them to be sent to live on the Pacific island of Palau. The five have refused two offers to go there, on the premises that they have no cultural affinity with that location and that they should not be put to the choice of going where they do not want to go and remaining at Guantanamo.

The Breyer statement essentially followed the reasoning of a judge of the D.C. Circuit Court, Judith W. Rogers, who had written when the case was before that court that the Uighurs had the keys to their freedom in their own possession, if they would only accept resettlement to Palau. The Breyer statement, in fact, quoted from the Rogers opinion as part of the justification for refusing to hear the Uighurs’ new plea — their second to the Court since they were cleared, nearly three years ago, for release from Guantanamo.

Although the Breyer comments made no mention of it, one of the likely reasons those four did not cast their votes for review (assuming they might have been tempted to do so) was that Justice Elena Kagan, a potential ally of theirs on the merits, did not take part in the order Monday. She formerly was U.S. Solicitor General and, as such, took part in this case at earlier stages, including its first trip to the Supreme Court. The Justices had agreed to hear that first petition, but then returned the case to the Circuit Court after the resettlement plans had changed the facts. The Circuit Court, on remand, reinstated its prior opinion, and refused even to permit a new hearing to sort through the issue of resettlement offers and refusals.

One of the continuing disconnects in the case is that the government (and now, apparently, the Court) has understood that this case was only about releasing the Uighurs into the U.S. mainland, to live temporarily, while the detainees’ counsel have insisted that what was at stake was whether federal judges in Guantanamo habeas cases have any real authority left to order outright release of a detainee — whether into the U.S. or elsewhere. The District Court judges who have cleared detainees for release have been allowed by the Circuit Court only to make such a release contingent on the Executive Branch’s use of diplomatic negotiations to decide when, and where, a detainee should be sent. Congress has repeatedly barred the release into the U.S. of any Guantanamo detainee, and the Executive Branch has relied upon that bar in this case.

Justice Breyer, seemingly accepting that the case was about release “into the United States,” used that phrase in his opinion and put it in italics, for emphasis. The Breyer statement did not mention it, but the Uighurs’ lawyers have argued that a flat bar by Congress to release of detainees into the U.S., until their resettlement could be resolved, is an unconstitutional suspension of the writ of habeas corpus.

This Term, the Court has so far examined eight cases in which Guantanamo detainees have challenged lower courts’ decisions in the wake of the Justices’ 2008 decision in Boumediene v. Bush, granting detainees at that military prison a constitutional right to challenge detention in U.S. courts. The detainees’ pleas have failed in each one of those eight cases. The Court has now denied review in six of those eight and, on April 12, it dismissed a seventh case, Mohammed, et al., v. Obama, et al. (10-746), apparently because that detainee has been sent — over his protest — to his home country, Algeria.

The one remaining case on the docket — a case involving more than 150 detainees — is Khadr, et al., v. Obama, et al., and the Justices had been scheduled to consider it at last Friday’s Conference. No action was taken on it immediately, however. That case is the latest in a series of attempts by detainees’ lawyers to challenge an April 2009 decision by the D.C. Circuit strictly limiting the powers of District judges to control the fate of detainees at Guantanamo Bay (the so-called “Kiyemba II” decision — one of the most sweeping defeats of detainees’ claims. The Circuit Court decisions that the Court refused to review on Monday had come in a case known as “Kiyemba III” and, earlier, as “Kiyemba I“).

The Obama Administration has opposed Supreme Court review in all of the eight cases this Term, arguing that lower courts were properly carrying out the Court’s Boumediene decision. To the detainees’ repeated argument that their claims were being judge by a diluted habeas standard, the government has replied that the situation of detention of individuals during wartime, on suspicion of terrorism, was unique and had to have its own set of procedures.

Of the eight cases considered this Term, Justice Kagan has been recused in six. Whether she will be out of the Khadr case is unclear at this point.

The Court’s denial of review in “Kiyemba III” came among several other actions of significance.

The Court agreed to consider, at its next Term, the case of Judulang v. Holder (Attorney General), docket 10-694) — the latest in a series of petitions, most of which were denied earlier, testing whether a non-citizen living in the U.S. as a “lawful permanent resident” has a right to avoid being deported following a conviction of a crime that ordinarily would lead to removal from the U.S.

Finally, the Court asked the U.S. Solicitor General’s office to supply the government’s views on the scope of hearings to review how school officials treat a disabled student under the Individuals with Disabilities Education Act. The case, Compton Unified School District v. Addison, et al., docket 10-886, tests whether a hearing is confined to intentional actions of school officials, or may also encompass actions that allegedly involve negligence. There is no timetable for the Solicitor General to respond. After getting the government’s views, the Court will decide whether to hear the case.

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